Attorney talks about York County groundbreaking same-sex marriage court ruling

A judge in York County has issued a landmark court ruling for South Carolina and other states with common law marriage that said a same-sex couple had a common law marriage. The ruling states the marriage is retroactive for the last three decades

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A judge in York County has issued a landmark court ruling for South Carolina and other states with common law marriage that said a same-sex couple had a common law marriage. The ruling states the marriage is retroactive for the last three decades

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ROCK HILL

Debra Parks wanted to be treated the same as anybody else by the courts. At 62, she’s disabled, and split from her partner of almost four decades. She filed a lawsuit because she wanted her relationship, which ended last year, to be considered a common law marriage under South Carolina law.

Parks is gay. But until 2014, same-sex marriage was illegal.

“I was in a same-sex relationship for all those years,” Parks said. “We owned a house together. We were a family, even when society didn’t accept it.”

Now, in what legal experts and Parks’ lawyers say is a groundbreaking case for South Carolina, and possibly for other states with common law marriage, a Family Court judge in York County has ruled that Parks and her former partner had a common law marriage under state law. And the state must recognize that their common law marriage has been legal for almost 30 years, the judge ruled.

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The ruling means same-sex couples now have the same retroactive rights as heterosexual married couples, experts say. Those rights include alimony, health insurance, taxes, the division of property and others.

The ruling immediately becomes a legal precedent, and has the potential to impact thousands of people in same sex relationships, experts and Parks’ lawyers say.

The ruling states a same sex marriage can be a common law marriage, and backdates the period of effect to the beginning of the common law marriage.

The order from Family Court Judge Thomas White states that, before the ban on same sex marriage was lifted in 2014 by a U.S. Supreme Court ruling, there were no other South Carolina cases addressing same sex marriage, whether licensed or common law.

“Quoting William Shakespeare, ‘A rose by any other name would smell as sweet,’” White wrote. “The law established by the U.S. Supreme Court in Obergefell (the supreme court case overturning the gay marriage ban) should be applied retroactively in South Carolina.”

South Carolina allowed legal gay marriages in November 2014.

The ruling is the correct legal ruling to protect spouses of the same sex, now that the same sex marriage ban has been ruled to be illegal and discriminatory, legal experts say. Common law marriage is a marriage without ceremony or license but includes the other aspects of a marriage such as living together and joint property.

“This is definitely new,” said Marcia Zug, a family law and marriage law expert and professor at the University of South Carolina law school. “It is the first of its kind. And not only is it a new decision. It is the right decision.”

Zug said the ruling seems to be morally and equitably right and addresses fundamental fairness, yet could face a legal challenge because it is a new ruling.

“The judge wants to be on the right side of history. It is a fact that for all those years America did not let (same sex couples) get married,” Zug said.

South Carolina is one of eight states that recognize common law marriage, according to the National Conference of State Legislatures Web site. Parks’ lawyers, Jim Tucker and David Martin of Rock Hill, said the case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

“This is the first one we are aware of in South Carolina and nationally where a case was tried and had a judge determine that the common law marriage was valid,” Martin said.

Tucker said the other part of the ruling that is equally important is that it’s retroactive. Before this ruling in York County, gay people in common law marriages had no recourse under the law to seek relief after a breakup, Tucker said, and the years of relationship were not recognized by any court.

The order states that Parks’ common law marriage is retroactive to the time when Parks divorced her husband while already living with her same sex partner. As a young adult Parks was married to a man and had two children. She and her female partner became a couple in 1977. In 1987 Parks divorced her husband, the order states, and the common law marriage began.

Susan Dunn, legal director of the South Carolina American Civil Liberties Union, said the ruling is the first of its kind in the state she knows of. Yet the retroactive part of the ruling might face the toughest legal challenge, Dunn said, because there is no other case to compare it to.

“This is new,” Dunn said. “And important.”

Parks and her partner split up last year, testimony showed. Parks filed the suit so she so could seek a division of property and spousal support. But her former partner fought the lawsuit, saying she never asked Parks to marry and never intended to be married, court documents show. The partner said, both she and Parks were free to leave the relationship at any time, court documents show. The partner argued she did not consider the relationship marital, court documents show.

The spousal support part has not yet been ruled on but will be heard in the coming weeks, Tucker said.

Parks’ former partner cannot appeal the ruling until the second part of the case concerning assets is finished, Tucker said.

The Herald is not naming Parks’ former partner because court documents show the woman is worried about negative repercussions on her job and at the Catholic church she attends. The lawyer for Parks’ former partner declined comment on her behalf.

White’s decision is not surprising, said Miller Shealy, a professor at the Charleston School of Law.

“Once the courts recognized same sex marriage, everything else from the marriage follows including rights of the parties,” Shealy said. “That includes marital property, alimony, divorce, all of it...It is clear all rights and duties of marriage now apply to same sex couples.”

Gay couples have became more socially acceptable over time, but for years the couple’s seemingly obvious relationship was shielded, White’s order said.

“Non-acceptance of homosexuality and same-sex relationships was the prevailing environment and atmosphere of the community at large during the majority of the parties’ cohabitation,” White wrote.

The couple was monogamous, court documents show, and clearly held themselves out as married to some friends and family -- even if some family objected. In a court hearing Parks’ family, including one of her grown children, testified that Parks and her partner were “just like any married couple.”

Current York County property records show Parks and her former partner listed as owners of the home they bought in Rock Hill. Parks and her partner also bought other property together, had joint bank accounts, used each other on tax documents, and lived together until 2016, court documents show.

“I want people in my situation to know they do have rights, and can get help,” Parks said. “We were married.”